An Appeal to Remember

In US v. Madrigal, the Fourth Circuit addressed whether, in a prosecution for violating Title 18 USC Section 1382 (basically, trespassing), the government must prove that a person must have notice that entry upon a military installation is prohibited.   The court concluded that notice is a necessary element when the indictment alleges that the accused violated an entry requirement.

The Fourth Circuit next addressed whether Madrigal’s presence itself on the Fort Lee military installation violated § 1382, as the District Court had determined, because “he is not legally in the United States.”   

The appellate court determined that, while entry into the United States at a place not designated by immigration officers, or without inspection is a crime pursuant to 8 U.S.C. § 1325(a), Madrigal’s status of being in the United States after entering in violation of § 1325(a) is not a separate crime.  The Fourth Circuit therefore reversed the judgment of the District Court.

In another appeal out of the Fourth Circuit involving illegal immigrants, the Defendant appealed from the district court’s imposition of a two-point enhancement pursuant to United States Sentencing Guidelines § 4A1.1(e), relating to the sentence imposed for his conviction under 8 U.S.C. § 1326.

The Defendant contended that at the time Immigration and Customs Enforcement (“ICE”) found him, for purposes of § 1326, he had not yet been sentenced and the two-point enhancement should not have been applied.  The Fourth Circuit held that when an Immigration Detainer-Notice of Action, Form I-247 (“Immigration Detainer”), is issued by a local law enforcement officer who is a participant in the cross-designation program, under 8 U.S.C. § 1357(g), ICE has actual knowledge that the immigrant is in the United States and, thus, has “found” the immigrant for purposes of 8 U.S.C. § 1326. In this case, ICE found the Defendant prior to his state court conviction or sentence and, consequently, the two-point enhancement was improperly applied.   

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